Stephens v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMR 17
•9 July 2024
| CERTIFICATE OF DETERMINATION OF MERIT REVIEWER | |
| CITATION: | Stephens v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 17 |
| CLAIMANT: | Georgina Therese Stephens |
| INSURER: | NRMA |
| MERIT REVIEWER: | Katherine Ruschen |
| DATE OF DECISION: | 9 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; dispute about payment of weekly benefits; section 3.13(1) meaning of “retiring age”; sections 23(5D) and 43 of the Social Security Act 1991 (Cth); qualification for the age pension; meaning of pension age; Held – the reviewable decision is confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act2017 DETERMINATION 1. The reviewable decision is affirmed. |
STATEMENT OF REASONS
INTRODUCTION
There is a dispute between Georgina Therese Stephens (the claimant) and the insurer about the amount of weekly payments of statutory benefits payable under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant was involved in a motor accident on 15 March 2023 and was aged 66 at the time.
Shortly after the motor accident, on a later date in March 2023, the claimant reached the age of 66 years and 6 months.
The claimant made an Application for personal injury benefits.
On 31 May 2023 the insurer issued a liability notice accepting liability for statutory benefits up to 52 weeks.
On 4 March 2024 the insurer issued a further liability notice denying liability for statutory benefits after 52 weeks on the basis the claimant was at fault, or mostly at fault in respect of the motor accident.
The claimant requested an internal review of the insurer’s decision of 4 March 2024 and on 17 May 2024 the insurer issued their internal review decision in which they set aside their 4 March 2024 decision and determined the claimant was not at, or mostly at, fault.
On 23 May 2024 a new liability notice was issued, accepting liability for statutory benefits after 52 weeks. On the same date, the insurer sent notice to the claimant that payment of weekly benefits would cease on 20 June 2024 under Division 3.3 of the MAI Act, as 12 months had lapsed since the claimant reached retiring age.
The claimant applied for an internal review of the insurer’s decision dated 23 May 2024 to cease weekly payments.
On 24 May 2024 the insurer issued their internal review decision in which the insurer affirmed their decision that the claimant’s weekly payments would cease on 20 June 2024 pursuant to s 3.13.
The claimant has requested a merit review of the insurer’s internal review decision dated 24 May 2024 (the Application).
SUBMISSIONS
The claimant accepts that:
(a) the accident occurred before she reached aged 66 years and 6 months;
(b) she reached the age of 66 years and 6 months shortly after the accident, in late May 2023, and
(c) in late May 2024 a period of 12 months since she reached the age of 66 years and 6 months had lapsed.
The applicant submits, however, that the definition of “retiring age” for the purpose of s 3.13 of the MAI Act requires an assessment as to whether the injured person would be eligible to receive the aged pension based on all other qualifying requirements. The applicant submits she would not be eligible for an aged pension because she would not satisfy the means test requirement. The applicant submits that because she does not satisfy this other qualifying criteria she has not reached “retiring age” for the purpose of s 3.13 of the MAI Act.
The insurer submits that s 3.13 concerns only whether the claimant meets the qualifying age requirement to, prima facie, be entitled to the age pension and whether any other qualifications for the age pension are met is not relevant under s 3.13.
REASONS
Issues
The dispute is about whether the insurer is entitled to cease payment of weekly benefits under s 3.13(1) of the MAI Act on the basis 12 months has lapsed since the claimant reached retiring age.
The claimant also raised that prior to receipt of the notice that weekly payments would cease the insurer did not mention or discuss with her the impact of s 3.13(1). The claimant said therefore the notice that weekly payments would cease dated 23 May 2024 came as a shock. However, during the teleconference the claimant acknowledged this issue is not a relevant matter in determining whether s 3.13(1) applies. For completeness, however, my conclusion is that regardless of these matters raised by the claimant, there is no scope under the MAI Act to pay weekly payments after the period prescribed by s 3.13(1), if the claimant has reached retiring age because:
(a) the insurer is not under an obligation to provide advice to the claimant on various provisions which might, in due course, impact the claimant’s entitlement to any particular statutory benefits;
(b) the wording of s 3.13(1) is in terms that a weekly payment of statutory benefits “is not to be made” in respect of any period after the period prescribed by the section and therefore imposes a mandatory obligation on the insurer to cease payments;
(c) although the insurer had accepted liability for statutory benefits that acceptance remains, at all times, subject to any other applicable requirements of the MAI Act. Pursuant to clause 4.44 of the Motor Accident Guidelines if an insurer accepts liability for statutory benefits “weekly payments may be payable to a claimant”. The use of the word “may” means that whilst, prima facie, the insurer has accepted liability, whether or not the injured person is entitled to payment of any particular statutory benefit remains subject to all other requirements of the MAI Act being satisfied;
(d) despite the liability notice dated 23 May 2024 the insurer is entitled to also issue a notice that weekly payments will cease under s 3.13(1), if that section is triggered by reason of the claimant’s age, and
(e) the insurer is to give the claimant 28 days’ notice of an intention to cease payment of weekly benefits, which the insurer has done. As the insurer issued that notice belatedly, the claimant does have the benefit of weekly payments for an additional four weeks, which she would not have had, if the insurer had given more timely notice 28 days before the claimant reached the age of 66 years and 6 months.
Accordingly, I do not consider that the issue of the lack of any prior consultation with the claimant or prior notice to the clamant before 23 May 2023 impacts whether the insurer’s decision to cease weekly payments should be set aside or affirmed.
Consideration
As to the substantive issue for this merit review, being the issue of retiring age, s 3.13(1) of the Act provides:
“Termination of weekly payments on retiring age
3.13 TERMINATION OF WEEKLY PAYMENTS ON RETIRING AGE
(1) If the motor accident that causes a person's injury happens before the person reaches the retiring age, a weekly payment of statutory benefits is not to be made under this Division in respect of any resulting period of loss of earnings or earning capacity occurring after the first anniversary of the date on which the person reaches the retiring age.”
Pursuant to s 3.13(1) a weekly payment of statutory benefits “is not to be made” for any period occurring more than 12 months after the date on which the person reaches the retiring age.
The meaning of “retiring age” for the purpose of s 3.13(1) is set out in s 3.13(3) and means “the age at which a person would, subject to satisfying any other qualifying requirements, be eligible to receive an age pension under the Social Security Act 1991 of the Commonwealth”.
The claimant submits that the inclusion of the words “subject to satisfying any other qualifying requirements” should be taken to mean that a person does not reach retiring age unless and until they meet all other qualifying requirements to be entitled to receive the age pension and not just the age requirement. The claimant submits that she does not meet other qualifying requirements as she does not meet the means test to be entitled to receipt of the age pension.
However, s 3.13(3) uses the word “would” that is, a person reaches retiring age when they reach “the age at which they would… be eligible to receive an age pension…” (emphasis added). The word “would” in s 3.13(1) indicates the consequence of an imagined event or situation and not actual events or an actual situation. In this case, the imagined event is qualification for the age pension by reason of reaching a certain age. The words “satisfying any other qualifying requirements” are prefaced with the words “subject to”, meaning whether a person who has reached the qualifying age is in fact entitled to the aged pension might be subject to other qualifying criteria but that other qualifying criteria is not relevant under s 3.13(1). That is to say, s 3.13(1) requires that one put aside whether the injured person meets any other qualifications for receipt of the age pension and consider only whether they have reached the qualifying age. Another way of putting the question to be asked under s 3.13(1) is whether, but for any other qualifying criteria, the injured person would be entitled to the age pension by reason of their age.
Whilst there are other qualifying requirements to be entitled to the age pension under Commonwealth legislation, s 3.13(1) speaks only of “retiring age” as the relevant criteria. By including the words “subject to”, s 3.13 merely acknowledges there may be other qualifying requirements before a person might actually receive payment of the age pension. The use of the word “would” in connection with a person’s eligibility for the age pension by reference to their age and the words “subject to” in connection with acknowledging there may be other criteria under the Social Security Act 1991 (Cth) (SS Act) makes clear that for the purpose of s 3.13(1) the only relevant criteria is the person’s age. In other words, for the purpose of s 3.13 of the MAI Act, a person reaches “retiring age” if they would, leaving aside other requirements, be entitled to the aged pension because of their age. Whether or not they meet any other qualifications so as to actually receive payment of the age pension is not a relevant consideration under s 3.13 of the MAI Act.
As the insurer states, s 3.13 only refers to “retiring age” and not to a person’s entitlement to actually receive an age pension.
Section 43 of the SS Act sets out the qualification requirements for a person to receive the age pension. Importantly, the section contains an initial “gateway” that persons must get through so as to prima facie be entitled to the age pension, subject to satisfying the qualification requirements set out in the subsections of s 43(1). Section 43(1) of the SS Act commences with the words “[a] person is qualified for an age pension if the person has reached pension age and any of the following applies…”.
“Pension age” is a defined term in the SS Act. The definition relevant to the claimant being a woman born between 1 July 1955 and 31 December 1956, is contained in s 23(5D) of the SS Act. Under s 23(5D) the claimant reached pension age when she turned 66 years and 6 months old in May 2023.
A fundamental principle of statutory interpretation is that the MAI Act is to be construed as a whole. As the High Court said in Project Blue Sky v Australian Broadcasting Authority (S41-1997) [1998] HCA 28 (Project Blue Sky) (at [69]):
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.”
The principles of statutory interpretation, as set out by the High Court in Project Blue Sky relevantly require that:
(a) the words in the statute must be interpreted in a way that is consistent with the language used in that statute;
(b) words of a statutory provision are given the meaning that the legislature is taken to have intended them to have, and
(c) the same wording used throughout the statute carries the same meaning.
As discussed above, s 3.13 refers to termination of weekly payments on “retiring age”. Section 43 of the SS Act states “a person is qualified for an age pension if the person has reached pension age…” the age requirement being the gate way to receiving the age pension, if other qualifying criteria is met. In my view, it follows that the term “retiring age” in the MAI Act by reference to the SS Act can only be a reference to “pension age” in the MAI Act. The inclusion of the words “subject to satisfying any other qualifying requirements” in the definition of “retiring age” in s 3.13(3) of the Act is an acknowledgement that whilst one might prima facie qualify for the age pension upon reaching a certain age there may be other criteria under the SS Act before they are in fact entitled to payment of the age pension. For the purpose of s 3.13(1), however, the age requirement is the only relevant consideration. I consider this interpretation to be consistent with the principles of statutory interpretation.
If the MAI Act intended that payment of weekly benefits where a person reaches pension age under the SS Act would only cease if the injured person in fact met all other qualifying criteria such that they would receive payment of the age pension then presumably the MAI Act would have said so by, for example, simply stating that a person ceases to be entitled to weekly payments “if they are entitled to the age pension” without making reference to the qualifying age or any imagined event.
Indeed, it would likely be a significant burden on insurers if they were required to assess a person’s entitlement to the age pension under all Commonwealth qualifying criteria. This could also lead to inconsistent decisions under State and Federal legislation. Whether a person is in fact entitled to the age pension is a matter for assessment by the Commonwealth government under the SS Act, not NSW government under the MAI Act.
CONCLUSION
I am satisfied that the correct interpretation of s 3.13(1) of the MAI Act requires only an assessment of whether the person would prima facie be entitled to the age pension by reason of their age. That is, whether a person has reached “retiring age” for the purpose of s 3.13(1) is determined only by whether they have met the definition of “pension age” in the SS Act.
The claimant met the relevant definition of pension age in s 23(5D) of the SS Act when she turned aged 66 years and 6 months in May 2023. More than 12 months has lapsed since the claimant turned 66 years and 6 months. Accordingly, pursuant to s 3.13(1) of the MAI Act, the claimant is not entitled to any further payment of weekly benefits after May 2024 subject to being given 28 days’ notice that weekly payments will cease. The insurer is not only entitled to but is required under s 3.13(1) to cease weekly payments 12 months after the claimant reached age 66 years and 6 months. As the insurer did not give the requisite notice until 23 May 2024, weekly payments must cease on 20 June 2024 as stated in that notice.
Accordingly, the reviewable decision is affirmed.
LEGISLATION AND GUIDELINES
In making this decision, I have considered the following:
· The Application, Reply and supporting documentation;
· MAI Act;
· Motor Accident Guidelines,
· Motor Accident Injuries Regulation 2017, and
· SS Act.
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